How best to approach a possible dismissal due to long-term sickness and ill health of an employee

"Could you outline how best to approach a possible dismissal due to long-term sickness and ill health of an employee?"

Scott: What are the things to keep in mind on how to ensure the dismissal is fair? Clearly, Jaguar didn't get it right in their particular case. 

Seamus: So the Rumbold/Jaguar Land Rover, this sent shivers up some spines. But this was an employee that had been employed with the company from February 1999 to December '18. So quite a lengthy period of service. I've no doubt that that was one of the issues of both for the employer and ultimately for the tribunal.

But during this period, the company, Jaguar Land Rover, had put to the tribunal that they had paid £95,855 in sick pay to this employee. So almost £100,000 is what they said at the tribunal in sick pay.

The circumstances of the case were that there had been a number of absences that had taken place. And as the question said, I think there was a total of 850 absences. It sounds in terms of reasonableness and proportionality you would wonder how any employer could manage to retain an employee with that sort of level of absence. But you have to also consider all of the other applicable discriminative legislation that applies also.

Ultimately, it was a fairly straightforward case of Jaguar Land Rover not following their policies and procedures.

There is a good background in relation to this case, and ultimately, there was an issue that came down on looking at reasonable adjustments and looking at alternative work for the employee. And there was just a feeling by Jaguar in terms of following their position.

Ultimately, the judge made a determination at the hearing and said that the employer had not followed their own procedures regarding the absences. And so, when they decided to dismiss the claimant, this was not a sanction which fell within a range of reasonable responses available to them. Range of reasonable responses is one that we'll hear all the time in respect of unfair dismissal cases. But in addition to that, there was an issue over alternative roles that the employee could do.

There was a medical report that had said that the employee could do an alternative job in relation to sealer at the end of a paint line. And this was obviously conducting paintwork to the body of the car, but that he would need a walking aide. The claimant used a walking stick, and the employer said that there was a risk that he would damage the paintwork with his walking stick.

So a clear position there that the decision was unfair, and it's one where the employer has fallen down simply by failing to follow its policy and procedure. The lesson to be learned there is always follow the policy and procedure.

In relation to steps that the employer should take, it's one that comes up quite regularly in advices that I provide, whereby you'll have somebody that's off on long-term sick leave.

Long-term sick leave or sickness or ill health, it is a potential fair reason for dismissal. But you must ensure that your approach is legitimate and that you're not straying into the realms of disability discrimination or age discrimination.

Key case that most employment lawyers will be familiar with will be Spencer and Paragon Wallpaper case. The judge in that case said that employers should look at the following factors when making an assessment. They said they should look at the nature of the illness, the length of continuing absence, the need of the employer to have their work completed that the employee was engaging, or all considerations to be a factor, including the size and the nature of the employer and the length of time that is reasonable to wait for the employees that recovery. And then balancing the needs, essentially, of the employer versus the employee's needs and their ability to return to work.

But a key consideration in all of this is can the employer reasonably be expected to keep the post open for an employee who is absent due to long-term ill health? You absolutely as an employer should be ensuring that you're getting an occupational health report, or alternatively, a report from the employee's GP, and that you are also liaising a meeting with the employee to have discussions about contents of any report.

 Ultimately, you tend to act from an advisory position to look at "Is there a return in the foreseeable future?" That tends to be the threshold, but you also must look at the whole circumstance, the holistic approach to look into when the employee might be able to return to work, what the timeframe for that might be, and whether or not that you can facilitate that through a temporary worker or whether the job can be held up.

And so lots of factors to take in. My advice tends to be do not rush that process, and certainly make your decision based on those two factors: the medical evidence that you have available and your consultation with the employee.

Scott: Yeah, employers get caught out all the time on that because they put up with it, put up with it, and put up with it, and then they go, "I'm fed up", and they sack them instead of dealing with it as part of a process.